Yukon court dismisses appeal of decision to quash exploration project in Beaver River watershed

The Yukon Court of Appeal has dismissed an appeal from the Yukon government to reinstate a mineral exploration project in the Beaver River watershed.

The First Nation of Na-Cho Nyäk Dun took the Yukon government to court in 2021 after the territory approved the project.

A Yukon Supreme Court judge ruled last year that the government did not adequately consult the First Nation on the project, quashing the approval and sending it back to the consultation stage. 

The Yukon government then appealed that decision. 

In a written decision released Wednesday, Justice Peter Willcock, one of the appeal court judges, said the territorial government failed "to engage in the extent of consultation required in this case," by failing to adequately address the First Nation's request that they consult directly with the community.

"In my opinion, the reviewing judge did not err in describing the potential impact of the Director's decision on the First Nation's treaty right to participate meaningfully in the management of lands and resources in its traditional territory, including through land use planning," Willcock wrote. 

The Beaver River watershed is about 100 kilometres north of Mayo, Yukon, and known for its pristine wilderness.

There is no land use plan in place for the area, and that's something the First Nation says it's been waiting on for decades. 

In 2020, Vancouver-based company Metallic Metals submitted its plan to scour for lead, silver, and zinc over 10 years on 52 claims in the area, covering 1,087 hectares in land.

The First Nation's final agreement, signed 30 years ago, played a central role in both the original case against the Yukon government and the appeal — in particular, Chapter 11, which covers land use planning. 

Lawyers for the Yukon government had argued the chapter doesn't establish the right to a land use plan, but a right to negotiate toward one — a right, they claimed, that wasn't infringed by approving Metallic Minerals' project. The chapter also doesn't prohibit development prior to a land use plan being put in place.

The appeal judges disagreed, siding with the First Nation's argument. 

"I agree with the First Nation's submission that approval of a development project in an area where land use planning is occurring may undermine the land use planning process, and the s.35 treaty rights which that process is intended to uphold, because it will reduce the amount of undeveloped land available if and when a land use plan is negotiated and implemented," Willcock wrote. 

In a news release on Tuesday, Na-Cho Nyäk Dun said the case was "deeply important" to the First Nation. Chief Dawna Hope said in the release that they are "very pleased" with the decision.